Solberg v. Solberg ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ERIC C. SOLBERG, Plaintiff/Appellant,
v.
REBECCA L. SOLBERG, Defendant/Appellee.
No. 1 CA-CV 15-0380FC
FILED 7-7-2016
Appeal from the Superior Court in Maricopa County
No. FC2011-000167
The Honorable Aimee L. Anderson, Judge
AFFIRMED
COUNSEL
Gillespie, Shields, Durrant & Goldfarb, Mesa
By Mark A. Shields, DeeAn Gillespie Strub
Counsel for Plaintiff/Appellant
The Murray Law Offices, Scottsdale
By Stanley David Murray
And
The Law Offices of Stone & Davis
By Lisa Johnson Stone
Counsel for Respondent/Appellee
SOLBERG v. SOLBERG
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Peter B. Swann joined.
T H O M P S O N, Judge:
¶1 Eric C. Solberg (husband) appeals from the trial court’s signed
judgment declining to change the nature of property held with Rebecca L.
Solberg (wife) as tenants in common, the denial of his motion for
modification of spousal maintenance, and the award of attorneys’ fees
against him in the amount of $31,829.09. Finding no abuse of discretion by
the trial court, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband and wife were divorced by a decree on entered on
February 6, 2013. That judgment awarded a community property rental
house (the Electra property) as tenants in common. Wife was awarded
spousal maintenance in the amount of $3,500 for sixty months. That
judgment was not appealed.
¶3 In April 2014, husband filed a Petition for Order to Appear
Re: Division of Undivided Asset and Modification of Spousal Maintenance.
Husband asserted that that the property was “not divided” in the decree.
Husband further asserted that wife had an increased income, or the
potential for an increased income, while husband’s dental practice was not
bringing in the same income it had previously. Husband asserted that wife
had less actual living expenses than were contemplated when the spousal
maintenance award was entered, while he had additional debt from loans
and taxes, and that he was preparing to pay for their child to attend college.
¶4 The family court held an evidentiary hearing. Husband, wife,
and husband’s accountant testified. After review of the record, and after
consideration of the arguments, the family court declined husband’s
request to divide the Electra property or to modify wife’s spousal
maintenance award. The court stated husband’s “unwillingness to continue
to be partners with Respondent is not good cause to deviate from the terms
of the Decree” and that the “original terms of the parties Decree, as it relates
to the property located on Electra Lane, remain in full force and effect.” It
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SOLBERG v. SOLBERG
Decision of the Court
found husband had not met his burden of proof to modify the spousal
maintenance award.
¶5 Wife was awarded $31,829.09 in attorneys’ fees pursuant to
Arizona Revised Statute (A.R.S.) § 25-324 (2007) after finding husband’s
position was “unreasonable.” Husband timely appealed.
DISCUSSION
¶6 On appeal, husband asserts that the family court erred, as a
matter of law, in failing to “divide” the Electra property which had been
part of the marital community. To this end, he cites to A.R.S. § 25-318(A)
(2007) which states:
In a proceeding for dissolution of the marriage . . . [the
court] shall also divide the community, joint tenancy and
other property held in common equitably, though not
necessarily in kind, without regard to marital misconduct.
This statute, he asserts, requires the court to allocate assets in a manner not
including tenants in common. Specifically, husband argues “[t]he
mentality behind this statute is clear: divorced parties should not be forced
to continue as co-owners of property.” We disagree.
¶7 The record is clear that the Electra property was an asset in
the decree. The family court changed the status of this investment property
from community property to tenants in common. Because this is not a
situation like Cooper v. Cooper, 167 Ariz. 482, 487, 808 P.2d 1234, 1239 (App.
1990), where an asset was not addressed in the decree, husband’s reliance
on that case for the proposition that he could bring an action to divide the
property is misplaced.
¶8 Preliminarily we note, as did wife in her answering brief, that
if husband had an objection to the award of the property as tenants in
common, he should have appealed that determination. He did not and,
even were we not to find against him on the merits, his argument would
nonetheless be waived. See Bike Fashion Corp. v. Kramer, 202 Ariz. 420, 425,
¶ 22, 46 P.3d 431, 436 (App. 2002) (failing to raise an issue in first appeal
waives it as to the second appeal). As father did not request findings of fact
or conclusions of law below, therefore, we presume the family court made
all necessary findings supported by the evidence. Neal v. Neal, 116 Ariz.
590, 592, 570 P.2d 758, 760 (1977).
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SOLBERG v. SOLBERG
Decision of the Court
¶9 No case law supports husband’s contention that a family
court, acting in equity, could not award property to a former husband and
wife as tenants in common. In fact, we direct husband’s attention to A.R.S.
§ 25-318(D) which specifically provides:
The community, joint tenancy and other property held in
common for which no provision is made in the decree shall
be from the date of the decree held by the parties as tenants in
common, each possessed of an undivided one-half interest.
There was no abuse of discretion here, and the family court is affirmed as
to the Electra property. See Hatch v. Hatch, 23 Ariz.App. 487, 490, 534 P.2d
295, 298 (1975).
¶10 Husband next challenges the family court’s denial of his
request to modify wife’s spousal maintenance award. To this end, he
asserts she has lowered expenses and an increase in her hourly pay. On
appeal, we review the family court's denial of a request for modification of
spousal maintenance awarded in a dissolution decree for an abuse of
discretion. Nace v. Nace, 107 Ariz. 411, 413, 489 P.2d 48, 50 (1971). Therefore,
we view the evidence in the trial court in the light most favorable to
sustaining the family court’s ruling, and we will affirm if there is any
reasonable evidence to support it. See Thomas v. Thomas, 142 Ariz. 386, 390,
690 P.2d 105, 109 (App. 1984).
¶11 Family courts should consider all factors in determining
whether a reduction in spousal maintenance is appropriate, rather than
using a dollar-for-dollar reduction for wife’s increased earnings. See Norton
v. Norton, 101 Ariz. 444, 477, 420 P.2d 578, 581 (1966). Further, wife’s
lowered expenses due to cohabitation do not necessarily constitute a reason
for reduction in spousal maintenance where there is no substantial net
change in her expenses. See Van Dyke v. Steinle, 183 Ariz. 268, 279-80, 902
P.2d 1372, 1383-84 (App. 1995) (holding a cohabitation is not a sufficient
basis, in itself, for reduction of spousal maintenance).
¶12 The family court heard testimony from both husband and
wife. The court found “[a]lthough there has been minimal change in
circumstance, the income earned by Petitioner has not been substantial or
continuing.” The family court also heard testimony regarding father’s
income from which it could have found no substantial decrease since the
2012 decree. The transcript reasonably supports the family court’s
determination that husband “has not met the burden of proof required
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SOLBERG v. SOLBERG
Decision of the Court
based on his failure to demonstrate either a substantial or continuing
change of circumstances“ as to wife’s earnings or expenses.
¶13 The trial court is the best judge of the credibility of the
witnesses and the weight of the evidence. Goats v. A.J. Bayless Mkts., Inc., 14
Ariz. App. 166, 171, 481 P.2d 536, 541 (1971). We will not substitute our
opinion of that determination. See id. at 169, 481 P.2d at 539. On this record,
we cannot conclude the court abused its discretion in denying husband’s
request to modify his spousal maintenance obligation.
Attorneys' Fees Below and On Appeal
¶14 After considering the factors of A.R.S. § 25-324, the family
court awarded wife attorneys' fees in the amount of $31,829.09. The family
court found husband took an “unreasonable posture” in this matter. The
court was aware of the parties’ relative financial positions and heard
testimony which could support a finding that husband’s positons were
unreasonable. For the above stated reasons, we do not find the trial court
abused its discretion in the award of attorneys’ fees to wife under A.R.S. §
25-324. See Magee v. Magee, 206 Ariz. 589, 590, ¶ 1, 81 P.3d 1048, 1049 (App.
2004).
¶15 Husband and wife each request their attorneys’ fees on
appeal. Wife is awarded costs and reasonable fees, in an amount to be
determined, after compliance with ARCAP 21.
CONCLUSION
¶16 The family court is affirmed.
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